Award Review - Second Round [2006] QIRC 158 (2006) 183 QGIG 960

[Extract from Queensland Government Industrial Gazette, dated 15 December, 2006, Vol. 183, No. 20, pages 960-964] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 130 - award review AWARD REVIEW - SECOND ROUND (B/2004/955) COMMISSIONER FISHER 1 December 2006 Award Review Mark II - Industrial Relations Act 1999 - s. 130 - Major participants - Items for consideration - Conduct of the Review - Conferences - Awards not reviewed in Mark I - Awards without 38 hour week - General Ruling B/2005/1235 - Awards without all wage and allowance increases granted by policy statement - General Ruling B/2005/600 - Public holiday clause - Annual leave clause - Appreciation. DECISION Background In mid-2003 the Vice President advised that she would be allocating to me the conduct of the second round of Award Review as required by s. 130 of the Industrial Relations Act 1999 (the Act). The Vice President advised that the second round would formally commence on 1 July 2004 as by that time the first round would be all but completed. To assist in the preparation for the second round I asked a number of the major participants in the first round of Award Review: the Queensland Council of Unions (QCU), The Australian Workers' Union of Employees, Queensland (AWU), Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers (QCCI) and the Department of Industrial Relations (DIR), to meet with me separately and informally to discuss the issues that were likely to be raised and whether any particular approach was preferred. These individual meetings were followed later in 2003 by more formal combined meetings of those bodies plus other major industrial organisations to try to flesh out the issues that would form the agenda for discussions for the second round and the method of review. At that stage it appeared unlikely that funding from DIR would be provided as had been the case with the first round. As a result of those discussions the parties arrived at a list of issues for consideration. These are listed below followed by the organisation that proposed the item in brackets:  Awards without a 38 hour week (AWU);  Awards without all increases granted by policy statement (QCU);  Public holiday clause (AWU);  Annual leave clause (AWU);  Superannuation (QCU); and  Work and family clause (QCCI). Conduct of Award Review Mark II The Commission as constituted convened the first formal conference on 2 July 2004. The Review was given the Matter No. B/2004/95. As transcripts are available for all of the formal conferences it is unnecessary to record the participants or their specific views. At the first conference the Commission advised the parties of the background to the Review and that an agenda had been developed by the participants which had played a major part in the first round. Further, the Commission said it was aware of the limited resources of the organisations and without funding, only a minimalist approach was being considered. Parties were encouraged to reach agreement on matters where possible. The Commission would convene conferences of the parties so that discussions could occur on the issues, however, if agreement could not be reached then the proposer of the issue would have to consider their options. The Commission distributed a folder of information to the parties which was designed to assist the parties’ understanding of the issue involved and/or the awards that were affected by the proposal. The Commission also advised the parties that at the request of the proposers of the issues neither the superannuation clause nor the work and family clause was being proceeded with. The Commission, the QCU and AWU explained the background to and purpose of each of the agenda items. This is outlined more fully below. Some initial discussion of the matters occurred with the focus being on the means to process the issues. It was agreed that in order to ascertain the position of employers a formal response to each of the issues was required to be filed by 3 September 2004. The conference on 17 September 2004 considered the responses that had been filed and discussed the way forward. -- 1 of 4 -- 2 Further conferences were held on 16 November 2004 and 18 March 2005. The agenda items and the position reached with respect to each of them is outlined below. The agenda and outcomes Awards not reviewed in Mark I To the above list of six issues the Commission added a further item, viz. awards that had not been reviewed as part of Award Review Mark I. A number of awards had been made during the currency of Award Review Mark I and had not formally undergone the process of review in regards to format, content, model clauses, etc. Twelve awards fell into that category and are listed in Schedule 1. The Vice President directed that those awards be reviewed as part of Award Review Mark II, with the principles that had been developed in the Award Review Mark I process being applied to them. During the course of Award Review Mark II both the Dental Assistants (Private Practice) Award - State and the Surveying (Private Practice) Award - State were the subject of comprehensive applications for amendment. The review of these Awards was left until those applications had concluded. Awards without a 38 hour week At the first conference the parties were provided with a list of those Awards that did not contain a 38 hour week. The list had been prepared by the Registry in consultation with DIR. It included those Awards that prescribed more than 38 hours, less than 38 hours or no working hours. The AWU, supported by the QCU, were seeking the support of the employers to have a General Ruling granted by consent to amend awards that prescribed more than 38 hours to provide for a 38 hour working week. Forty-seven awards would be affected by such an application. The AWU believed that those cost minimisation measures that had become the "standard" when introducing the 38 hour week should be those which were considered as part of this process. The AWU did not see Award Review as the mechanism to consider other conditions. At the conference, employers were generally of the view that only those awards to which agreement could be reached should be processed as part of Award Review Mark II. In their responses of 3 September 2004 some employers indicated they were seeking cost minimisation measures which were additional to the "standard" items on the basis that some or all of those had already been incorporated into awards as a result of other processes. Amendments that addressed such issues as casual loadings in excess of the Commission’s standard were raised as being relevant for consideration. At the conference of 16 November 2004 it was agreed that the list of awards that were to be the subject of discussions be reviewed by the AWU and a revised list circulated to relevant parties and the Registry. Once this had been circulated employers were to advise by 1 March 2005 their position with respect to the AWU’s proposed or other cost minimisation measures. Employers concerned with this issue provided written advice generally opposing the AWU’s proposed list of cost minimisation measures. The employers were opposed to a General Ruling and sought separate discussions with the relevant unions to ensure cost minimisation measures were available. At the conference of 18 March 2005, the position of the AWU was sought in light of that advice, however, the AWU was not able to immediately inform the Commission and the parties of it and its advocate was given the opportunity to seek instructions. As no agreement could be reached, the AWU filed an application for a General Ruling, Matter No. B/2005/1235. The decision of the Full Bench in respect of that application is reported at (2006) 181 QGIG 535. Awards without all increases granted by policy statement At the conference on 2 July 2004 the parties were also provided with a list of awards that did not include all of the wage and allowance increases that had been available under policy statements issued by the Commission during the period 1987-1996. This document had been updated by the QCU from a spreadsheet prepared by DIR for the purposes of Award Review Mark I. The QCU proposed that those awards that had not been adjusted for any or all of the available increases be updated by the means of a General Ruling granted by consent. The QCU advised that it did not seek to pursue minimum rates adjustments. At the conference of 17 September 2004 the QCU circulated a document outlining the process it proposed be adopted concerning the method of calculation to adjust award rates and allowances. The process envisaged was to take the rates that existed on 1 January 1987 and to apply all increases that had been available by Statement of Policy or General Ruling since that time. This would ensure appropriate rounding off occurred. Allowances would go through a similar -- 2 of 4 -- 3 exercise, with the need to ensure that only those allowances that could be adjusted under the relevant wage principles were adjusted. Employers were requested to provide responses to that proposal by 15 October 2004. The Commission also indicated that in conjunction with the Registry it would have discussions with DIR about resourcing the project. At the conference of 18 March 2005 the Commission was able to advise the parties that the Registry had been successful in having resources allocated. The project involved ensuring that the rates and allowances for the awards affected by this process were accurate and the calculations as proposed by the QCU were made in accordance with the process document. The parties were advised this information would be available on request and parties were encouraged to contact the Registry with any queries. The project commenced on or about 4 April 2005. At this conference the QCU advised that it had held discussions with DIR over some concerns in relation to the process document. Those concerns related to absorption, phasing-in and the application of the Incapacity to Pay Principle. As a result of those discussions agreement had been reached. In light of this and the other responses received from employers the QCU believed a consent position had been reached and the matter could go forward as a consent General Ruling. As the conference unfolded this optimistic position could not be sustained. The view of several employers was that the adjustments should be considered on an award by award basis. Despite agreement not being able to be reached between the parties that awards should be amended by General Ruling, there was no opposition to the method of calculation proposed by the QCU. In order to finalise the issue the QCU filed an application (Matter No. B/2005/600) seeking a General Ruling to adjust wages and relevant allowances for those increases that were available in the stated period. The decision of the Full Bench, granting the application, is reported at (2005) 179 QGIG 413. Public holiday clause The issue raised by the AWU was that under the public holidays clause found in many awards the only day for which employees are entitled to receive payment and a day off is Labour Day. In relation to other public holidays found in the standard clause, provision is made for payment at the rate of double time and a-half if work is performed on the day but it does not provide for payment if no work is required to be performed. The AWU wanted to correct what it perceived as an anomaly and provide that payment be made if no work is performed on a public holiday. In several of the responses filed by the employers on 3 September 2004 it was noted that s. 15 of the Act and the Commision’s policy addressed the concern identified by the AWU. On that basis employers did not consider it necessary for awards to be amended in the manner sought by the AWU. The AWU noted that unfortunately the Commission’s policy was not reflected in every award clause. However, in consideration of the responses and in order to reduce the workload of the Award Review process the AWU was prepared to remove the issue from the agenda. Annual leave clause The issue raised by the AWU concerned the wage rate upon which the annual leave loading of 171/2% is calculated. The AWU noted that awards provide for annual leave to be paid at the ordinary rate or at a rate in excess of the ordinary rate, whichever is received immediately prior to proceeding on annual leave. The problem identified by the AWU was that a number of awards provide that the annual leave loading is to be paid at the ordinary rate prescribed by the award or in a specified award clause. In an era where the ordinary rate for many employees is prescribed by certified agreement the AWU had encountered difficulties with certain employers in having the leave loading calculated at that ordinary rate (or at a rate in excess of the ordinary rate, whichever is received immediately prior to proceeding on annual leave) given the wording of the award clause. The AWU proposed an alteration to the offending award clauses to rectify that difficulty and circulated a draft to that effect. Although some employers initially supported the AWU’s proposition, ultimately a number of employers in the private sector opposed it. DIR also said that the Industrial Inspectorate advised that the method of calculation was to be done on the award rate. Given this attitude of opposition the AWU ultimately decided not to press the issue as part of the Award Review Mark II process. Appreciation I would like to express my appreciation to the parties which participated in the Review for their time and consideration of the issues. I would also like to thank the Registry staff for their considerable work in this Review. Order accordingly. G.K. FISHER, Commissioner. Released: 1 December 2006 -- 3 of 4 -- 4 SCHEDULE ONE Arthur Gorrie Correctional Centre (Custodial Correctional Officers) Award - State 2002 Car Park Attendants Award - South Eastern Division Dental Assistants (Private Practice) Award - State Department of Corrective Services Correctional Employees' Interim Award - State Indigenous Australian Community Housing Award - State Meter Reading Employees' Award - State 2002 Nurses' Aged Care Award - State 2003 Nurses' Award - State Property Sales Award Queensland - State Property Management Award Queensland - State SEPR Australia Pty Ltd - Award 2001 Surveying (Private Practice) Award - State Government Printer, Queensland The State of Queensland 2006. -- 4 of 4 --